Sollitt v. Moore

Mr. Presiding Justice Waterman delivered the opinion ■of the court. Among the instructions given at the instance of the plaintiff was one telling the jury that in fixing the amount of the plaintiff’s damages, they might take into consideration in connection with all the other evidence in the case, the pecuniary and social standing of the defendant and the character and standing of the plaintiff, so far as those have been shown by the evidence. There was evidence as to the pecuniary standing of the defendant, but none as to his social standing. The instruction was therefore in that regard, erroneous. The evidence as to the pecuniary standing of appellant was that he was worth $50,000. There was no evidence tending to show that appellee had, by reason of the words spoken, sustained mental suffering or injury to his reputation. Instruction number one ivas misleading in containing an intimation that proof of such suffering and injury had been introduced. Appellant should have been permitted to show that which prior to the speaking of the words he had ascertained or been informed, and honestly believed, as to the taking away from, the “ Antlers ” by appellee of personal property belonging to him, appellant. As is said in Welker v. Butler, 15 Ill. App. 209-211-212, “While the law implies malice from the use of words actionable %>er se, yet this implication may be explained and rebutted by circumstances. Words standing alone may import malice and indicate a wicked intent. Surround them with the circumstances undej which they were spoken and the malice disappears.. It may also be shown that the words were used with reference to a known act, and were so understood by those present, and that such was not, in point of law, a felony.” Zuckerman v. Sonnenschein, 62 Ill. 115; McKee v. Ingalls, 4 Scam. 30; Ayers v. Grider, 15 Ill. 37-38; Townsend on Slander, 3d Ed., Sec. 36.1. The circumstances under which the slanderous words were uttered, were such that a verdict for $10,000 therefor, shows that the jury, in what they did, were either actuated by passion or prejudice, or entirely misunderstood the nature of the cause they were trying and their duty in respect thereto. It is not strange that one should become alarmed and excited who, having examined an abstract and found that three conveyances made to him would convey to him a proper title to the property, should, having received three deeds and paid $400 in money for the last conveyance, find that the parties making the last deed had, the day prior thereto, executed, and there had been recorded, a deed by them to a third party, of which he, the purchaser, was ignorant until ten days after he had parted with his money. Such circumstances would tend to alarm a reasonable man and induce him to believe that he had been intentionally swindled. And when, eleven days after the purchase, Mr. Sollitt, as a reasonable man, went to the premises and found in possession thereof, Mr. Miller and wife and Doctor Moore, to whom Miller and wife had conveyed the premises one day prior to executing a deed to and receiving from him, Sollitt, $400, he had reason to be indignant and excited. Likewise, when Mr. Sollitt was then and there told by Miller that the deed he and his wife had made to him, Sollitt, “ was no good,” certainly the suspicions of a reasonable man would have been strong, and it would not be strange if he uttered language not used in the best society. So, also, when the next morning he went with two persons, whom he had employed, and after knocking at the rear of the house and the front, with no response, his employes attempted to get in at an open window and were driven out with a revolver by Mrs. Miller, one of the parties by whom he had apparently been swindled, the check for $350 having been made to the order of Mrs. Miller and the money thereon drawn the day after it was made, he might have well thought that he had fallen into the hands of and been dealing with very dishonest people. Especially so, when Mi’.' Miller came running up to his wife, crying out to her, “Shoot them full of holes.” Mor did the reiterated utterances of Mr. Miller, on that morning, telling Mr. Sollitt that he had no right there, have a tendency to allay Mr. Sollitt’s fears and induce him to proceed with that calmness and deliberation and to make use of that polite, gentlemanly and amiable demeanor, which persons should exercise under all circumstances. Mor did what occurred on October 23d have a tendency to greatly re-assure Mr. Sollitt and make him think he had been fairly dealt with. He was then, by the attorney of Mr. Miller, shown a defective deed from. John M. Miller and Minnie M. Miller to appellee, upon which the attorney claimed, but offered to waive, a lien of $30, which deed Mr. Sollitt’s attorney advised him not to accept. This conveyance appears to have been recorded in Lake county on the 26th day of October, twenty-two days after the making and twenty-one days after the recqrding of the deed from Miller and wife to Sollitt. Whether there was originally an intention upon the part of Miller and wife to swindle Mr. Sollitt out of his $400, as would appear from the making and recording of the deed to Moore, without any apparent honest purpose,'and as further appears from the testimony as to the conduct of Mr. and Mrs. Miller when Sollitt made known to them and Mr. Moore his discovery of the existence and recording of the deed to Moore; and their conduct, also, when he, Sollitt, the next day attempted to take possession of the premises he had bought and paid for; or whether such deed was made for some unknown and as yet unsuspected purpose, and, by some mistake upon the part of Miller’s attorneys, was not recorded; or whether, as his attorney stated, it had been held because of a lien of $30 thereon; at all events, Mr. Sollitt was in no way or wise responsible for the very suspicious circumstances presented, and ought not to be mulcted in a large sum for his natural indignation, or, in the absence of evidence showing actual damage, made to pay a great sum of money, although he made use of ungentlemanly language and charged that upon Mr. Moore of which, as a matter of fact, he was innocent. The judgment of the Superior Court is reversed and the cause remanded.